Karnataka High Court
Harsha Hospital vs State Of Karnataka on 16 July, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 21472 OF 2024 (EDN-RES)
BETWEEN:
1. HARSHA HOSPITAL
NO 193/4, BYRAVESHWARANAGR
SONDEKOPPA CIRCLE
NEALMANGALA TOWN
BANGALURU RURAL DISTRICT 562 133
REPRESENTED BY ITS PARTNER
G H PRAKASH.
2. G H PRAKASH S/O HANUMAIAH
AGED ABOUT 59 EYARS
R/AT NO 5971, SMT NILAYA
GOVINDAPPALAYOUT
SUBHASHNAGAR
NELAMANGALA
BANGALORE - 562 123.
3. MRS SUNANDA
W/O LATE H SHVIAKUAMRA
Digitally signed by PARTNER OF HARSHA HOSPITAL
CHANDANA B M AGED ABOUT 59 YEARS
Location: High NO 5743, BEHIND PWD QUARTERS
Court of SUBHASH NAGAR
Karnataka NELAMANGALA
BANGALORE - 562 123.
4. S MANJUNATH
S/O LATE H SHIVAKUMAR
PARTNER OF HARSHA HOSPITAL
AGED ABOUT 37 YEARS
R/AT 5347, SUBASHNAGAR
BACKSIDE PWD QUARTERS
NELAMAGNALA TOWN
BANGALORE RURAL DISTRICT 562 123.
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5. S PAVITHA
D/O LATE PIPELINEKUMAR
PARTNER OF HARSHA HOSPITAL
AGED ABOUT 35 YEARS
R/AT NO 88, PIPPELINE ROAD
MAGADI MAIN ROAD
ANAJANAANGAR
BENGALURU - 560 091.
...PETITIONERS
(BY SRI. D.R.RAVI SHANKAR, SENIOR COUNSEL FOR
SRI.TEJASVI K V.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRSENTED BY ITS CHEIF SECRETARY
DEPARMENT OF MEDICAL EDUCATION
MS BUILDING, AMBEDKAR VEEDI
BENGALURU - 560 001.
2. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
KARNATAKA BENGALURU
REPRSENTED BY ITS REGISTRAR/ VICE-CHANCELLOR
4TH BLOCK, JAYANAGARA
BENGALURU - 560 041.
3. SRI SRINIVASA CHARITABLE TRUST, (REGISTERED PUBLIC TRUST)
NO 5743,
BACK SIDE OF PWD QUARTERS
SUBHASHNAGAR
NEALMANGALA
BENGALURU RURAL - 562 132.
REPRSENTED BY ITS TRUSTEE
SRI S SHIVAKUMAR.
4. S SHIVAKUMAR
S/O SRI SIDDALINGAPPA
TRUSTEE
SRI SRINIVASA CHARITABLE
AND EDUCATION TRUST
AGED ABOUT 53
R/AT NO 193/4, BYRASWESHWARNAGAR
SONDEKOPPA CIRLCE
NELAMAGNALA TOWN
BANGALORE RURAL DISTRICT - 562 123.
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5. GIRIJA W/O SHIVAKUMAR S
TRUSTEE
SRI SRINIVASA CHARITABLE
AND EDUCATION TURST
AGED ABOUT 45
R/AT NO 193/4, BYRAVESWARNAGAR
SONDEKOPPA CIRCLE
NELAMANGALA TOWN
BANGALORE RURAL DISTRICT - 562 123.
...RESPONDENTS
(BY SMT. SUKANYA BALIGA, AGA FOR R-1
SRI. B.K. BOPPANNA, ADVOCATE FOR R-2
SRI. UDAYA HOLLA, SENIOR COUNSEL APPEARING FOR
SRI. T. KRISHNA, ADVOCATE FOR R-3 TO R-5)
THIS W.P IS FILED UNDER ARTICLE 226 OF CONSTITUTION OF
INDIA PRAYING TO DIRECTING R2 TO INVESTIGATE THE COMPLAINT
GIVEN BY THE PETITIONERS IN ANNEXURE-J DTD 09.01.2024 AND TAKE
APPROPRIATE ACTION AGAINST R3,R4 AND R5 AND ETC.
THIS PETITION IS BEING HEARD AND RESERVED ON 24.04.2025
COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
CAV ORDER
In this petition, petitioners have sought for the following
reliefs:-
"A. Issue a WRIT OF MANDAMUS or any other
appropriate writ, order, or direction directing Respondent No.
2 to investigate the complaint given by the Petitioners in
Annexure-J, dated 09/01/2024 and take appropriate action
against Respondent Nos. 3, 4, and 5.
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B. Issue a WRIT OF CERTIORARI or any other
appropriate writ, order, or direction, calling upon the records
leading to the issuance of the continuation of affiliation dated
20/02/2024, RGUHS/ACA/AFF/Continuation/BPT/MPT/2/2023-24
vide Annexure-K and quash the same.
C. Issue a WRIT OF MANDAMUS or any other
appropriate writ, order, or direction, directing the Respondent
No. 1 to initiate an independent inquiry into the allegations of
fraud, misappropriation, and other illegal activities committed
by Respondent Nos. 4 and 5, and to take appropriate legal
action based on the findings of the inquiry.
D. Pass any other order or direction that this Hon'ble
Court deems fit and proper in the facts and circumstances of
the case, including the award of costs to the Petitioners."
2. Briefly stated, the petitioners have filed the present
petition interalia contending as under:-
The 1st petitioner claims to be a registered partnership firm,
which was constituted between petitioner No.2 - G.H.Prakash, late
H.Shivakumar, respondent No.4 - S.Shivakumar and his wife Girija
G., respondent No.5 herein. The petitioners 3, 4 and 5 are the wife
and children of late H.Shivakumar, the aforesaid partner of 1st
petitioner - Firm.
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2.1 It is contended that the 1st petitioner - Firm was
registered under the name and style "Harsha Hospital" and in order
to fulfill the object of the firm, the partners purchased converted
land bearing Sy.No.193/4 measuring 39 guntas situated at
Nelamangala village, Kasaba Hobli, Nelamangala taluk, Bangalore
Rural District, Bangalore, vide registered sale deed dated
30.04.2004. The 3rd respondent - Sri.Srinivasa Charitable Trust
was constituted vide registered Trust Deed dated 16.06.2003
comprising of respondents 4 and 5 and Smt.S.Shantha and
Smt.S.Ganga as its trustees with the object of promoting
Education, Health care and social welfare. It is contended that
petitioners and respondents 4 and 5 being partners of Harsha
Hospital mutually agreed to start educational institutions on the
aforesaid land in the name of 3rd respondent - Trust. It is further
contended that the petitioners discovered recently that respondents
4 and 5 have engaged in illegal activities concerning the operations
of the partnership firm including criminal breach of trust, cheating,
fraud, siphoning of funds, misappropriation of assets, falsification of
accounts and collusion to defraud the petitioners and other stake
holders.
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2.2 Petitioners contend that they recently learnt that
respondents 4 and 5 are operating a physiotherapy course on the
Firm's premises without authorization as per Notifications issued by
2nd respondent - RGUHS from 2016 to 2022 in favour of Harsha
Institute of Physiotherapy. It is contended that they obtained
documents submitted by respondents 4 and 5 for the purpose of
continuation of affiliation for the academic year 2023-24 to RGUHS
and found that a forged lease agreement dated 21.11.2011 was
produced by them for the purpose of renewal and upon enquiries,
petitioners obtained a certified copy of a deed of lease agreement
from the office of Sub-Registrar which differed significantly in the
schedule, total extent of property and security deposit amount
which indicated that they had forged the document for the purpose
of securing continuation of affiliation. It is further contended that the
same document was furnished by respondents 4 and 5 to
fraudulently obtain affiliation for Harsha Public International School,
Nelamangala and a complaint filed by the petitioners has resulted
in an FIR which has been stayed by this Court.
2.3 Petitioners contend that they gave a complaint to 2nd
respondent - RGUHS requesting investigation and not to grant
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affiliation in favour of Harsha Institute of Physiotherapy for the
academic year 2023-24, despite which the 2nd respondent issued
the impugned Notification at Annexure-K dated 20.02.2024
continuing the affiliation in favour of respondents 3 to 5 at Sl.No.13
and as such, petitioners are before this Court by way of the present
petition.
3. Respondents 3 to 5 have filed their statement of
objections interalia disputing and denying the various allegations
and claim made by the petitioners. It is contended that apart from
the fact that the petitioners do not have locus standi to prefer the
present petition, they are guilty of suppression of material facts and
have not come to Court with clean hands and are not entitled to
any relief in the present petition, which is filed with malafide
intentions and ulterior motives by suppressing various prior /
previous litigations and disputes between the petitioners and them.
It is contended that the petition is not maintainable in relation to the
unaided private educational institutions, Harsha Institute of
Physiotherapy being run by Sri.Srinivasa Charitable Trust and
academic matters of 2nd respondent - University by granting
continuation of affiliation in favour of 3rd respondent are not
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amenable to the jurisdiction of this Court under Article 226 of the
Constitution of India. It is further contended that respondents 3 to 5
are running physiotherapy courses in property bearing No.7568
and No.7380, Byraveshwara Nagar, Dadapeer layout,
Nelamangala town, Bangalore Rural District, Bangalore, after
obtaining necessary affiliation from 2nd respondent - RGUHS from
2016 onwards which is being continued from that time including the
affiliation granted vide impugned Notification dated 20.02.2024 for
the academic year 2023-24. It is contended that the aforesaid
properties were purchased by respondents 3 to 5 vide registered
sale deeds dated 01.10.2008 and 23.09.2010 and after due
inspection, the RGUHS granted and continued affiliation in favour
of the said college. The respondents 3 to 5 specifically and
categorically denied that they had submitted a forged deed of lease
agreement dated 21.11.2011 for the purpose of obtaining and
seeking continuation of the affiliation to run the Harsha Institute of
Physiotherapy and the various allegations regarding fraud, forgery,
cheating, misappropriation, collusion etc., urged by the petitioners
have been specifically denied by the respondents 3 to 5.
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3.1 At paragraph-17 of their statement of objections,
respondents 3 to 5 have detailed the various civil and criminal
litigations, disputes, proceedings, arbitrations etc., as per Table-1
and Table-2 from 2017 onwards between the petitioners and
respondents comprising of about 19 matters as indicated therein in
order to contend that the petitioners are repeatedly harassing and
intimidating these respondents. It is further contended that an
identical complaint given by the petitioners requesting 2nd
respondent - RGUHS to withdraw continuation of affiliation granted
to one more institute, i.e., Harsha College of Nursing culminated in
an Endorsement dated 31.08.2023 issued by RGUHS to the
petitioners. Under these circumstances, respondents 3 to 5 sought
for dismissal of the petition.
3.2 During the pendency of the present petition preferred on
20.08.2024, respondents 3 to 5 filed a memo dated 15.04.2025
enclosing a copy of the continuation of affiliation dated 24.09.2024
granted by 2nd respondent - RGUHS in their favour for the
academic year 2024 - 2025 and accordingly, contend that the
present petition seeking quashing of the continuation of affiliation
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for the previous academic year 2023-24 has been rendered
infructuous and the petition is liable to be dismissed.
4. The petitioners have filed their rejoinder to the objections
filed by the respondents 3 to 5 and disputed the various
contentions urged by them. The specific contention urged by the
respondents 3 to 5 that Harsha Institute of Physiotherapy is being
run at properties bearing No.7568 and No.7380 has been
specifically disputed and denied by the petitioners who contend
that while there is no structure / building on property No.7568, the
building / structure put up on property No.7380 was illegal and
unauthorised. It is contended that the petitioners being partners of
Harsha Hospital are entitled to seek the intervention of this Court to
address illegalities involving allegations of fraud, forgery and
misrepresentation based on fraudulent documents submitted by
respondents 3 to 5 which had not been verified by 2nd respondent -
RGUHS which did not exercise due diligence before granting and
continuing affiliation in favour of Harsha Institute to Physiotherapy.
It is contended that merely because there are civil and criminal
disputes pending between the parties, the serious allegations of
forgery put forth by the petitioners warrant independent
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adjudication and that the petitioners have legal right to seek
redressal of their specific illegalities. It is therefore contended that
the various contentions urged by the respondents liable to be
rejected.
5. Heard learned Senior counsel for the petitioners and
learned Senior counsel for respondents 3 to 5 and learned AGA for
1st respondent as well as learned counsel for 2nd respondent -
RGUHS and perused the material on record.
6. In addition to reiterating the various contentions urged in
the petition and referring to the material on record, learned Senior
counsel for the petitioners submits that petitioners 2 to 5 are
partners of petitioner No.1 - Harsha Hospital which is the rightful
owner of property bearing Sy.No.193/4 which is being
unauthorisedly used by respondents 3 to 5 to run its physiotherapy
Institute based on a forged lease document, thereby affecting the
rights of the petitioners who have a direct and substantial interest in
challenging the affiliation and as such, petitioners are entitled to
invoke the jurisdiction of this Court in the present petition. It is
contended that 2nd respondent has acted arbitrarily without
exercising due diligence and without considering or hearing the
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complaint of the petitioners and granted illegal continuation of
affiliation, despite non-compliance of RGUHS norms. It is submitted
that under identical circumstances in relation to Harsha Public
International School, the very same act of forgery was challenged
by the petitioners herein in W.P.No.20699/2023 which was
disposed of vide final order dated 15.04.2025 directing CBSE to
investigate into the matter and an appropriate enquiry in this regard
may be directed in the present petition also. In support of his
submissions, learned Senior counsel for the petitioners relied upon
the following judgments:-
(i) Gadde Venkateswara Rao vs. Government of
Andhra Pradesh and Others - 1965 SCC OnLine SC 25;
(ii) Jasbhai Motibhai Desai vs. Roshan Kumar, Haji
Bashir Ahmed and Others - (1976) 1 SCC 671;
(iii) Sir M. Visveshwaraya Education Trust vs. State of
Karnataka 1991 SCC OnLine Kar 306;
(iv) Sri. Arjunappa and Another vs. State of Karnataka
and Others c/w Sri Narayanappa and Another vs. State of
Karnataka and Others - W.P. No. 49958/2019 c/w. W.P. No.
49959/ 2019 dated 18.07.2022;
(v) Sri Adichunchanagiri Maha Samstana Mutt vs. State
of Karnataka and Others - W.A. No.769/2022 c/w. W.A.
No.745/2022 dated 18.01.2024
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7. Per contra, learned AGA for 1st respondent-State and
learned counsel for 2nd respondent - RGUHS jointly submit that the
impugned Notification directing continuation of affiliation was
issued after due verification and by exercising due diligence by
taking into account that affiliation had been granted from 2016
onwards and continued from year to year and since there was no
violation of the terms and conditions of the affiliation, the 2nd
respondent proceeded to issue the impugned Notification, which
does not warrant interference in the present petition, which is liable
to be dismissed.
8. Learned Senior counsel for respondents 3 to 5 would
reiterate the various contentions urged in the statement of
objections and submit that apart from the fact that the petitioners
do not have locus standi to prefer the present petition, they do not
have any legally enforceable right to approach this Court and in
addition to the fact that the writ petition is not maintainable against
respondents 3 to 5 who are running a private unaided educational
institutions and the writ petition is liable to be dismissed. It is
submitted that the various contentions urged by the petitioners give
rise to complex, complicated and disputed questions of fact which
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are incapable of adjudication in the present petition and the
petitioners having suppressed material facts including earlier civil
and criminal litigations, disputes etc., between the parties are not
entitled to any reliefs in the present petition, which is liable to be
dismissed. In support of his contentions, learned Senior counsel for
respondents 3 to 5 have placed reliance upon the following
judgments:-
(i) Vinoy Kumar vs. State of U.P and Ors. - (2001)
4 SCC 734;
(ii) Ayaaubkhan Noorkhan Pathan vs. State of
Maharashtra and Ors. - (2013) 4 SCC 465;
(iii) Dr.Rai Shivendra Bahadur vs. Governing
Body of the Nalanda College, Bihar Sharif & others -
AIR 1962 SC 1210;
(iv) St. Mary's Education Society and Another vs.
Rajendra Parasad Bahrgava and Others - (2023) 4 SCC
498;
(v) S.P. Chengalvaraya Naidu (Dead) By Lrs. Vs.
Jagannath (Dead) By Lrs. And others - 1994 (1) SCC 1;
(vi) K.D. Sharma vs. Steel Authority of India
Limited and others - (2008) 12 SCC 481;
(vii) Chanchalpati Das vs. State of West Bengal
and Another - 2023 SCC Online SC 650.
9. I have given my anxious consideration to the rival
submissions and perused the material on record.
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10. At the outset, it is relevant to state that prayer No.(B) in
the present petition supra, relates to quashing of the impugned
Notification (Sl.No.13) vide Annexure-K dated 20.02.2024, whereby
the 2nd respondent - RGUHS granted continuation of affiliation in
favour of respondents 3 to 5 to run the Harsha Institute of
Physiotherapy for the academic year 2023-24. In this context,
during the pendency of the present petition preferred on
02.08.2024, the 2nd respondent issued a Notification dated
24.09.2024 granting continuation of affiliation in favour of
respondents 3 to 5 for the academic year 2024-25, since the
impugned Notification was for the previous academic year which
stood expired. In view of this subsequent event that has transpired
by issuance of the aforesaid Notification dated 24.09.2024 for the
academic year 2024-25, the present petition seeking to challenge
the impugned Notification dated 20.02.2024 for the previous
academic year 2023-24 does not survive any longer and the same
has been rendered infructuous.
11. A perusal of the complaint at Annexure-J dated
09.01.2024 submitted by the petitioner will indicate that it is
specifically contended that a forged lease agreement dated
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21.11.2011 had been submitted by respondents 3 to 5 to 2nd
respondent - RGUHS for the purpose of continuation of affiliation
in favour of Harsha Institute of Physiotherapy; in this regard, it is
significant to note that even according to the petitioners
themselves, the 2nd respondent had granted affiliation in favour of
the said Institute as long back as in the year 2016 and the said
affiliation which is valid for a period of one year was continued
periodically every year including the academic year 2023-24 by
issuing the impugned Notification dated 20.02.2024; the allegation
made by the petitioners that the lease agreement dated 21.11.2011
said to have been submitted by respondents 3 to 5 is a forged and
fabricated document is seriously disputed and denied by
respondents 3 to 5; further, the respondents 3 to 5 submitted a
detailed reply dated 11.01.2024, pursuant to which, the 2nd
respondent - RGUHS proceeded to continue the affiliation by
issuing the impugned Notification.
12. A perusal of the complaint given by the petitioners and
the reply given by respondents 3 to 5 culminating in the impugned
Notification continuing affiliation and the other material on record
will indicate that the serious allegations of fraud put forth by the
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petitioners having been disputed and denied by respondents 3 to 5,
the said issue is beyond the scope of examination by this Court
under Article 226 of the Constitution of India, especially when the
instant case requires an enquiry into facts arising out of a complex
cob-web of facts which are incapable of being adjudicated upon in
the present petition, since the same is impermissible in law.
13. In the case of Shubhas Jain vs. Rajeshwari Shivam &
others - (2021) 20 SCC 454, the Apex Court has reiterated the
well settled position that the High Court in its extraordinary
jurisdiction under Article 226 of the Constitution of India does not
adjudicate upon the hotly disputed questions of fact.
14. In the instant case, the specific plea put forth by the
petitioners relates to an alleged production of a allegedly forged
lease deed alleged to have been submitted by respondents 3 to 5
requiring detailed examination of oral and documentary evidence
within the domain / realm of civil courts involving factual
controversies not amenable to determination under Article 226 of
the Constitution of India. In other words, by way of the present
petition, the petitioners seek to assail the impugned Notification
continuing affiliation on the ground that the same was obtained by
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production of a forged lease deed by respondents 3 to 5, who have
disputed and denied the claim of the petitioners, thereby leading to
the sole conclusion that the said factual controversy / dispute
between the petitioners and respondents 3 to 5 cannot be gone
into in writ proceedings, more particularly when determination /
adjudication of the legality, authenticity, genuineness, validity of the
alleged lease deed would have to be adjudicated only by the
competent civil court and not by this Court under Article 226 of the
Constitution of India, especially when complex and substantial
disputed questions of fact require detailed evidence which is
impermissible by way of the present petition.
15. A perusal of the claim of the petitioners will indicate that
it is their specific contention that the petitioner No.1 - Firm is the
owner of land bearing Sy.No.193/4, in which, respondents 3 to 5
are running the aforesaid Harsha Institute of Physiotherapy having
obtained affiliation based on a forged / fabricated lease deed,
thereby affecting the rights of the petitioners over the said property.
In addition to disputing the various allegations and claim made by
the petitioners, respondents 3 to 5 specifically contend that the said
Harsha Institute of Physiotherapy is being run in property bearing
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No.7568 and No.7380, in respect of which, 2nd respondent -
RGUHS has granted affiliation and continued the same from 2016
onwards. In this context, it is pertinent to note that while the
allegedly forged lease agreement dated 21.11.2011 (Annexure-G)
pertains to Khaneshumari No.7568 carved out of Sy.No.191, the
lease agreement dated 21.01.2011 (Annexure-H) pertains to
property bearing site No.4, Khaneshumari No.4836 / 04, both of
which do not relate to Sy.No.193/4 claimed by the petitioners. It
follows therefrom that in the light of the specific plea put forth by
the petitioners over Sy.No.193/4, the petitioners cannot be said to
be aggrieved persons in relation to the aforesaid lease deeds /
agreements which do not relate to Sy.No.193 /4 claimed by them,
thereby indicating that the petitioners do not have locus standi to
maintain the present petition.
16. In Vinoy Kumar's case supra, the Apex Court held as
under:-
"2. Generally speaking, a person shall have no
locus standi to file a writ petition if he is not personally
affected by the impugned order or his fundamental
rights have neither been directly or substantially
invaded nor is there any imminent danger of such rights
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being invaded or his acquired interests have been
violated ignoring the applicable rules. The relief under
Article 226 of the Constitution is based on the existence
of a right in favour of the person invoking the
jurisdiction. The exception to the general rule is only in
cases where the writ applied for is a writ of habeas
corpus or quo warranto or filed in public interest. It is a
matter of prudence, that the court confines the exercise
of writ jurisdiction to cases where legal wrong or legal
injuries are caused to a particular person or his
fundamental rights are violated, and not to entertain
cases of individual wrong or injury at the instance of
third party where there is an effective legal aid
organisation which can take care of such cases. Even in
cases filed in public interest, the court can exercise the
writ jurisdiction at the instance of a third party only when
it is shown that the legal wrong or legal injury or illegal
burden is threatened and such person or determined
class of persons is, by reason of poverty, helplessness
or disability or socially or economically disadvantaged
position, unable to approach the court for relief."
17. In Ayaaubkhan Noorkhan Pathan's case supra, the
Apex Court held as under:
"Person aggrieved
9. It is a settled legal proposition that a stranger
cannot be permitted to meddle in any proceeding,
unless he satisfies the authority/court, that he falls
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within the category of aggrieved persons. Only a person
who has suffered, or suffers from legal injury can
challenge the act/action/order, etc. in a court of law. A
writ petition under Article 226 of the Constitution is
maintainable either for the purpose of enforcing a
statutory or legal right, or when there is a complaint by
the appellant that there has been a breach of statutory
duty on the part of the authorities. Therefore, there must
be a judicially enforceable right available for
enforcement, on the basis of which writ jurisdiction is
resorted to. The Court can, of course, enforce the
performance of a statutory duty by a public body, using
its writ jurisdiction at the behest of a person, provided
that such person satisfies the Court that he has a legal
right to insist on such performance. The existence of
such right is a condition precedent for invoking the writ
jurisdiction of the courts. It is implicit in the exercise of
such extraordinary jurisdiction that the relief prayed for
must be one to enforce a legal right. In fact,
the existence of such right, is the foundation of the
exercise of the said jurisdiction by the Court. The legal
right that can be enforced must ordinarily be the right of
the appellant himself, who complains of infraction of
such right and approaches the Court for relief as
regards the same. [Vide State of Orissa v. Madan Gopal
Rungta [1951 SCC 1024 : AIR 1952 SC 12] , Saghir
Ahmad v. State of U.P. [AIR 1954 SC 728] , Calcutta
Gas Co. (Proprietary) Ltd. v. State of W.B. [AIR 1962
SC 1044] , Rajendra Singh v. State of M.P. [(1996) 5
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SCC 460 : AIR 1996 SC 2736] and Tamilnad Mercantile
Bank Shareholders Welfare Assn. (2) v. S.C.
Sekar [(2009) 2 SCC 784] .]
10. A "legal right", means an entitlement arising out
of legal rules. Thus, it may be defined as an advantage,
or a benefit conferred upon a person by the rule of law.
The expression, "person aggrieved" does not include a
person who suffers from a psychological or an
imaginary injury; a person aggrieved must, therefore,
necessarily be one whose right or interest has been
adversely affected or jeopardised. (Vide Shanti Kumar
R. Canji v. Home Insurance Co. of New York [(1974) 2
SCC 387 : AIR 1974 SC 1719] and State of
Rajasthan v. Union of India [(1977) 3 SCC 592 : AIR
1977 SC 1361] .)
11. In Anand Sharadchandra Oka v. University of
Mumbai [(2008) 5 SCC 217 : AIR 2008 SC 1289] , a
similar view was taken by this Court, observing that, if a
person claiming relief is not eligible as per requirement,
then he cannot be said to be a person aggrieved
regarding the election or the selection of other persons.
13. This Court, even as regards the filing of a
habeas corpus petition, has explained that the
expression "next friend" means a person who is not a
total stranger. Such a petition cannot be filed by one
who is a complete stranger to the person who is in
alleged illegal custody. [Vide Charanjit Lal
Chowdhury v. Union of India [1950 SCC 833 : AIR 1951
SC 41] , Sunil Batra (2) v. Delhi Admn. [(1980) 3 SCC
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488 : 1980 SCC (Cri) 777 : AIR 1980 SC 1579] , Nilima
Priyadarshini v. State of Bihar [1987 Supp SCC 732 :
1988 SCC (Cri) 138 : AIR 1987 SC 2021] , Simranjit
Singh Mann v. Union of India [(1992) 4 SCC 653 : 1993
SCC (Cri) 22 : AIR 1993 SC 280] , Karamjeet
Singh v. Union of India [(1992) 4 SCC 666 : 1993 SCC
(Cri) 17 : AIR 1993 SC 284] and Kishore
Samrite v. State of U.P. [(2013) 2 SCC 398] ]"
18. As stated supra, the specific claim of the petitioners is in
relation to land bearing Sy.No.193/4 and since the lease deeds
referred to by the petitioners dated 21.11.2011 do not pertain to the
said property, the petitioners cannot be said to be aggrieved
persons nor can there be said to have any locus standi to prefer /
maintain the present petition which is liable to be dismissed.
19. In Dr.Rai Shivendra Bahadur's case supra, the Apex
Court held as under:-
"5. A great deal of controversy was raised before us
as to whether the Statutes framed by the University under
Section 20 of the University of Bihar Act have or have not
the force of law and whether a writ under Article 226 of the
Constitution can issue against the Governing Body of the
College i.e. whether the appellant has a legal right to the
performance of a legal duty by the respondents. In order
that mandamus may issue to compel the respondents to do
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something it must be shown that the Statutes impose a
legal duty and the appellant has a legal right under the
Statutes to enforce its performance. It is, however, wholly
unnecessary to go into or decide this question or to decide
whether the Statutes impose on the Governing Body of the
College a duty which can be enforced by a writ of
mandamus because assuming that the contention of the
appellant is right that the College is a public body and it has
to perform a public duty in the appointment of a Principal, it
has not been shown that there is any right in the appellant
which can be enforced by mandamus. According to the
Statutes all appointments of teachers and staff have to be
made by the Governing Body and no person can be
appointed, removed or demoted except in accordance with
Rules but the appellant has not shown that he has any right
entitling him to get an order for appointment or
reinstatement. Our attention has not been drawn to any
article in the Statutes by which the appellant has a right to
be appointed or reinstated and if he has not that right he
cannot come to court and ask for a writ to issue. It is
therefore not necessary to go into any other question."
20. In the instant case, so long as the aforesaid lease
agreements dated 21.11.2011 do not pertain to land bearing
Sy.No.193/4 claimed by them nor is there any other material to
establish that Harsha Institute of Physiotherapy, in whose favour
affiliation has been continued is running the said college on land
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bearing Sy.No.193/4, it cannot be said that the petitioners have any
locus standi or any claim to challenge the grant or continuation of
affiliation in favour of the said Institute and consequently, the
present petition is liable to be dismissed on this ground also.
21. As stated earlier, while petitioners specifically contend
that Harsha Institute of Physiotherapy is being run in land bearing
Sy.No.193/4 belonging to them, respondents 3 to 5 specifically
contend that the said Institute is being run in property bearing
No.7568 and No.7380 purchased by them vide registered sale
deeds dated 01.10.2008 and 23.09.2010; this factual dispute
regarding not only right, title, interest and possession over the land
in which the said Institute is being run but also its location, identity,
measurements etc., also gives rise to complex / complicated
factual controversy which necessarily has to be adjudicated before
the competent civil court and not by way of the present petition
under Article 226 of the Constitution of India and viewed from this
angle also, the petition is liable to be dismissed.
22. In St.Mary's Education Society's case supra, the
Apex Court held as under:-
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"Legal status of Appellant 1 Society
16. Appellant 1 is a Society registered under the
Madhya Pradesh Society Registrikaran Adhiniyam,
1973. The Society runs an all-girls school in Mhow,
Indore, Madhya Pradesh, by the name St. Mary's
Higher Secondary School, which was founded by a
group of French Catholic Nuns in 1893. The school is a
private unaided minority educational institution, which
enjoys the protection guaranteed under Article 30(1) of
the Constitution. There is absolutely no governmental
control over the functioning and administration of the
school. Respondent 1 herein was employed in this
school prior to his termination. The school is presently
affiliated to the Central Board of Secondary Education
(CBSE) and is thus governed by its Rules and Bye-
laws. Further, the Society has its own Bye-laws,
namely:
(1) the Service Conditions for the Employees of
St. Mary's School, and
(2) Service Rules for Teaching and Non-
Teaching Staff.
Appellant 1 Society and the school are absolutely
private institutions, without any aid or control of the
Government or any instrumentality of the Government,
and therefore, not a "State" within the meaning of Article
12 of the Constitution.
xxxx
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30. We may at the outset state that CBSE is only a
society registered under the Societies Registration Act,
1860 and the school affiliated to it is not a creature of
the statute and hence not a statutory body. The
distinction between a body created by the statute and a
body governed in accordance with a statute has been
explained by this Court in Executive Committee of Vaish
Degree College v. Lakshmi Narain [Executive
Committee of Vaish Degree College v. Lakshmi Narain,
(1976) 2 SCC 58 : 1976 SCC (L&S) 176] , as follows :
(SCC p. 65, para 10)
"10. ... It is, therefore, clear that there is a well
marked distinction between a body which is created
by the statute and a body which after having come
into existence is governed in accordance with the
provisions of the statute. In other words the position
seems to be that the institution concerned must
owe its very existence to a statute which would be
the fountainhead of its powers. The question in
such cases to be asked is, if there is no statute
would the institution have any legal existence. If the
answer is in the negative, then undoubtedly it is a
statutory body, but if the institution has a separate
existence of its own without any reference to the
statute concerned but is merely governed by the
statutory provisions it cannot be said to be a
statutory body."
31. As stated above, the school is affiliated to CBSE
for the sake of convenience, namely, for the purpose of
recognition and syllabus or the courses of study and the
provisions of the 2009 Act and the Rules framed
thereunder.
32. The contention canvassed by Respondent 1 is
that a writ petition is maintainable against the
Committee of Management controlling the affairs of an
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institution (minority) run by it, if it violates any rules and
Bye-laws laid down by CBSE. First, as discussed
above, CBSE itself is not a statutory body nor the
regulations framed by it have any statutory force.
Secondly, the mere fact that the Board grants
recognition to the institutions on certain terms and
conditions itself does not confer any enforceable right
on any person as against the Committee of
Management.
33. In Regina v. St. Aloysius Higher Secondary
School [Regina v. St. Aloysius Higher Secondary
School, (1972) 4 SCC 188 : AIR 1971 SC 1920] , this
Court held that the mere fact that an institution is
recognised by an authority, does not itself create an
enforceable right to an aggrieved party against the
Management by a teacher on the ground of breach or
non-compliance of any of the Rules which was part of
terms of the recognition. It was observed as under :
(SCC p. 198, para 24)
"24. ... The Rules thus govern the terms on
which the Government would grant recognition
and aid and the Government can enforce these
rules upon the management. But the
enforcement of such rules is a matter between
the Government and the management, and a
third party, such as teacher aggrieved by some
order of the management cannot derive from
the rules any enforceable right against the
management on the ground of breach or non-
compliance of any of the rules."
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34. In Anita Verma v. D.A.V. College Management
Committee [Anita Verma v. D.A.V. College
Management Committee, (1992) 1 UPLBEC 30] :
"... 30. Where the services of a teacher
were terminated, the Court held that the writ
petition under Article 226 is not maintainable as
the institution cannot be treated as the
instrumentality of the State. The matter was
considered in detail in Harbans Kaur v. Guru
Tegh Bahadur Public School [Harbans
Kaur v. Guru Tegh Bahadur Public School,
1992 SCC OnLine All 444 : 1992 Lab IC 2070] ,
wherein the services of the petitioner were
terminated by the Managing Committee of the
institution recognised by CBSE. It was held that
the Affiliation Bye-laws framed by CBSE have
no statutory force. The Court under Article 226
of the Constitution of India can enforce
compliance of statutory provision against a
committee of management as held in a Full
Bench decision of this Court in Aley Ahmad
Abidi v. District Inspector of Schools [Aley
Ahmad Abidi v. District Inspector of Schools,
1976 SCC OnLine All 325 : AIR 1977 All 539] .
The Affiliation Bye-laws of CBSE having no
statutory force, the only remedy against the
aggrieved person is to approach CBSE putting
his grievances in relation to the violation of the
Affiliation Bye-laws by the institution."
35. Thus, where a teacher or non-teaching staff
challenges the action of Committee of Management that
it has violated the terms of contract or the rules of the
Affiliation Bye-laws, the appropriate remedy of such
teacher or employee is to approach CBSE or to take
such other legal remedy available under law. It is open
to CBSE to take appropriate action against the
Committee of Management of the institution for
withdrawal of recognition in case it finds that the
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Committee of Management has not performed its duties
in accordance with the Affiliation Bye-laws.
36. It needs no elaboration to state that a school
affiliated to CBSE which is unaided is not a State within
Article 12 of the Constitution of India [see Satimbla
Sharma v. St Paul's Senior Secondary School [Satimbla
Sharma v. St Paul's Senior Secondary School, (2011)
13 SCC 760 : (2012) 2 SCC (L&S) 75] ]. Nevertheless
the school discharges a public duty of imparting
education which is a fundamental right of the citizen
[see K. Krishnamacharyulu v. Sri Venkateswara Hindu
College of Engg. [K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engg., (1997) 3 SCC
571 : 1997 SCC (L&S) 841] ]. The school affiliated to
CBSE is therefore an "authority" amenable to the
jurisdiction under Article 226 of the Constitution of
India[see Binny Ltd. v. V. Sadasivan [Binny Ltd. v. V.
Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881] ].
However, a judicial review of the action challenged by a
party can be had by resort to the writ jurisdiction only if
there is a public law element and not to enforce a
contract of personal service. A contract of personal
service includes all matters relating to the service of the
employee -- confirmation, suspension, transfer,
termination, etc. [see Apollo Tyres Ltd. v. C.P.
Sebastian [Apollo Tyres Ltd. v. C.P. Sebastian, (2009)
14 SCC 360 : (2009) 5 SCC (Civ) 358 : (2010) 1 SCC
(L&S) 359] ].
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37. This Court in K.K. Saksena v. International
Commission on Irrigation & Drainage [K.K.
Saksena v. International Commission on Irrigation &
Drainage, (2015) 4 SCC 670 : (2015) 2 SCC (Civ) 654 :
(2015) 2 SCC (L&S) 119] , after an exhaustive review of
its earlier decisions on the subject, held as follows :
(SCC pp. 692 & 696, paras 43 & 52)
"43. What follows from a minute and careful
reading of the aforesaid judgments of this Court is
that if a person or authority is "State" within the
meaning of Article 12 of the Constitution,
admittedly a writ petition under Article 226 would
lie against such a person or body. However, we
may add that even in such cases writ would not
lie to enforce private law rights. There are a
catena of judgments on this aspect and it is not
necessary to refer to those judgments as that is
the basic principle of judicial review of an action
under the administrative law. The reason is
obvious. A private law is that part of a legal
system which is a part of common law that
involves relationships between individuals, such
as law of contract or torts. Therefore, even if writ
petition would be maintainable against an
authority, which is "State" under Article 12 of the
Constitution, before issuing any writ, particularly
writ of mandamus, the Court has to satisfy that
action of such an authority, which is challenged, is
in the domain of public law as distinguished from
private law.
***
52. It is trite that contract of personal service
cannot be enforced. There are three exceptions to
this rule, namely:
(i) when the employee is a public servant
working under the Union of India or State;
(ii) when such an employee is employed by an
authority/body which is a State within the meaning
of Article 12 of the Constitution of India; and
(iii) when such an employee is “workmen”
within the meaning of Section 2(s) of the Industrial
Disputes Act, 1947 and raises a dispute regarding
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his termination by invoking the machinery under
the said Act.
In the first two cases, the employment ceases to
have private law character and “status” to such an
employment is attached. In the third category of
cases, it is the Industrial Disputes Act which
confers jurisdiction on the Labour Court/Industrial
Tribunal to grant reinstatement in case
termination is found to be illegal.”
38. The following decisions have been adverted to
in K.K. Saksena [K.K. Saksena v. International
Commission on Irrigation & Drainage, (2015) 4 SCC
670 : (2015) 2 SCC (Civ) 654 : (2015) 2 SCC (L&S)
119] :
1. Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav Smarak
Trust v. V.R. Rudani [Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2
SCC 691 : AIR 1989 SC 1607] ,
2. G. Bassi Reddy v. International Crops
Research Institute [G. Bassi Reddy v. International
Crops Research Institute, (2003) 4 SCC 225] ,
3. Praga Tools Corpn. v. C.A. Imanual [Praga
Tools Corpn. v. C.A. Imanual, (1969) 1 SCC 585] ,
4. Federal Bank Ltd. v. Sagar Thomas [Federal
Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733] .
39. This Court in Janet Jeyapaul v. SRM
University [Janet Jeyapaul v. SRM University, (2015) 16
SCC 530 : (2015) 13 Scale 622 : 8 SCEC 68] , held that
when a private body exercises its public functions even
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if it is not a State, the aggrieved person has a remedy,
not only under the ordinary law, but also by way of a
writ petition under Article 226 of the Constitution.
In Binny case [Binny Ltd. v. V. Sadasivan, (2005) 6
SCC 657 : 2005 SCC (L&S) 881] , this Court held that
Article 226 of the Constitution is couched in such a way
that a writ of mandamus could be issued even against a
private authority. However, such private authority must
be discharging a public function and that the decision
sought to be corrected or enforced must be in the
discharge of public function.
40. Para 11 of the judgment in Binny [Binny
Ltd. v. V. Sadasivan, (2005) 6 SCC 657 : 2005 SCC
(L&S) 881] is reproduced below : (SCC pp. 665-66)
“11. Judicial review is designed to prevent
the cases of abuse of power and neglect of duty
by public authorities. However, under our
Constitution, Article 226 is couched in such a
way that a writ of mandamus could be issued
even against a private authority. However, such
private authority must be discharging a public
function and that the decision sought to be
corrected or enforced must be in discharge of a
public function. The role of the State expanded
enormously and attempts have been made to
create various agencies to perform the
governmental functions. Several corporations
and companies have also been formed by the
Government to run industries and to carry on
trading activities. These have come to be known
as public sector undertakings. However, in the
interpretation given to Article 12 of the
Constitution, this Court took the view that many
of these companies and corporations could
come within the sweep of Article 12 of the
Constitution. At the same time, there are private
bodies also which may be discharging public
functions. It is difficult to draw a line between
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public functions and private functions when it is
being discharged by a purely private authority.
A body is performing a “public function” when it
seeks to achieve some collective benefit for the
public or a section of the public and is accepted
by the public or that section of the public as
having authority to do so. Bodies therefore
exercise public functions when they intervene or
participate in social or economic affairs in the
public interest.”
(emphasis supplied)
41. This Court considered various of its other
decisions to examine the question of public law remedy
under Article 226 of the Constitution. This Court
observed in Binny case [Binny Ltd. v. V. Sadasivan,
(2005) 6 SCC 657 : 2005 SCC (L&S) 881] as under :
(SCC p. 673, para 29)
“29. Thus, it can be seen that a writ of
mandamus or the remedy under Article 226 is
pre-eminently a public law remedy and is not
generally available as a remedy against private
wrongs. It is used for enforcement of various
rights of the public or to compel the
public/statutory authorities to discharge their
duties and to act within their bounds. It may be
used to do justice when there is wrongful
exercise of power or a refusal to perform duties.
This writ is admirably equipped to serve as a
judicial control over administrative actions. This
writ could also be issued against any private
body or person, specially in view of the words
used in Article 226 of the Constitution. However,
the scope of mandamus is limited to
enforcement of public duty. The scope of
mandamus is determined by the nature of the
duty to be enforced, rather than the identity of
the authority against whom it is sought. If the
private body is discharging a public function and
the denial of any right is in connection with the
public duty imposed on such body, the public
law remedy can be enforced. The duty cast on
the public body may be either statutory or
otherwise and the source of such power is
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immaterial, but, nevertheless, there must be the
public law element in such action. Sometimes, it
is difficult to distinguish between public law and
private law remedies.”
(emphasis supplied)
42. In the penultimate paragraph, this Court [Binny
Ltd. v. V. Sadasivan, (2005) 6 SCC 657 : 2005 SCC
(L&S) 881] ruled as under : (Binny case [Binny Ltd. v. V.
Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881] ,
SCC p. 674, para 32)
“32. Applying these principles, it can very
well be said that a writ of mandamus can be
issued against a private body which is not
“State” within the meaning of Article 12 of the
Constitution and such body is amenable to the
jurisdiction under Article 226 of the Constitution
and the High Court under Article 226 of the
Constitution can exercise judicial review of the
action challenged by a party. But there must be
a public law element and it cannot be exercised
to enforce purely private contracts entered into
between the parties.”
(emphasis supplied)
43. In the background of the above legal position, it
can be safely concluded that power of judicial review
under Article 226 of the Constitution of India can be
exercised by the High Court even if the body against
which an action is sought is not State or an authority or
an instrumentality of the State but there must be a
public element in the action complained of.
44. A reading of the above extract shows that the
decision sought to be corrected or enforced must be in
the discharge of a public function. No doubt, the aims
and objective of Appellant 1 herein are to impart
education, which is a public function. However, the
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issue herein is with regard to the termination of service
of Respondent 1, which is basically a service contract.
A body is said to be performing a public function when it
seeks to achieve some collective benefit for the public
or a section of the public and is accepted by the public
or that section of the public as having authority to do so.
45. In Delhi Public School v. M.K. Gandhi [Delhi
Public School v. M.K. Gandhi, (2015) 17 SCC 353 :
(2017) 5 SCC (Civ) 461 : (2015) 3 SCC (L&S) 745] , this
Court held that no writ is maintainable against a private
school as it is not a “State” within the meaning of Article
12 of the Constitution of India.
46. In Trigun Chand Thakur v. State of Bihar [Trigun
Chand Thakur v. State of Bihar, (2019) 7 SCC 513 :
(2019) 2 SCC (L&S) 378] , this Court upheld the view
[Trigun Chand Thakur v. State of Bihar, 2008 SCC
OnLine Pat 994] of a Division Bench of the Patna High
Court which held that a teacher of privately managed
school, even though financially aided by the State
Government or the Board, cannot maintain a writ
petition against an order of termination from service
passed by the Management.
47. In Satimbla Sharma [Satimbla Sharma v. St
Paul‘s Senior Secondary School, (2011) 13 SCC 760 :
(2012) 2 SCC (L&S) 75] , this Court held that the
unaided private minority schools over which the
Government has no administrative control because of
their autonomy under Article 30(1) of the Constitution
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are not “State” within the meaning of Article 12 of the
Constitution. As the right to equality under Article 14 of
the Constitution is available against the State, it cannot
be claimed against unaided private minority private
schools.
48. The Full Bench of the Allahabad High Court
in Roychan Abraham v. State of U.P. [Roychan
Abraham v. State of U.P., 2019 SCC OnLine All 3935 :
AIR 2019 All 96] , after taking into consideration various
decisions of this Court, held as under : (SCC OnLine All
para 38)
“38. Even if it be assumed that an
educational institution is imparting public duty,
the act complained of must have direct nexus
with the discharge of public duty. It is
undisputedly a public law action which confers a
right upon the aggrieved to invoke extraordinary
writ jurisdiction under Article 226 for a
prerogative writ. Individual wrongs or breach of
mutual contracts without having any public
element as its integral part cannot be rectified
through petition under Article 226. Wherever
Courts have intervened in exercise of
jurisdiction under Article 226, either the service
conditions were regulated by statutory
provisions or the employer had the status of
“State” within the expansive definition under
Article 12 or it was found that the action
complained of has public law element.”
(emphasis supplied)
49. We may refer to and rely upon one order passed
by this Court in S.K. Varshney v. Our Lady of Fatima
Higher Secondary School [S.K. Varshney v. Our Lady of
Fatima Higher Secondary School, (2023) 4 SCC 539] ,
in which the dispute was one relating to the retirement
age of a teacher working in an unaided institution. This
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Court, while dismissing the appeal preferred by the
employee, held as under : (SCC p. 523, paras 4-8)
“4. Both the petitions were dismissed by the
learned Single Judge on the ground that no writ
would lie against unaided private institutions
and the writ petitions were not maintainable.
5. Aggrieved thereby, writ appeals have
been filed before the Division Bench without any
result. The Division Bench held [S.K.
Varshney v. Our Lady of Fatima Higher
Secondary School, 1999 SCC OnLine All 908]
that the writ petitions are not maintainable
against a private institute. Aggrieved thereby,
these appeals have been filed.
6. The counsel for the appellant relied on a
decision rendered by this Court in K.
Krishnamacharyulu v. Sri Venkateswara Hindu
College of Engg. [K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engg., (1997) 3
SCC 571 : 1997 SCC (L&S) 841] He particularly
relied on the observation made by this Court in
para 4 of the order that when an element of
public interest is created and the institution is
catering to that element, the teacher, being the
arm of the institution, is also entitled to avail of
the remedy provided under Article 226.
7. This Court in Sushmita
Basu v. Ballygunge Siksha Samity [Sushmita
Basu v. Ballygunge Siksha Samity, (2006) 7
SCC 680 : 2006 SCC (L&S) 1741] in which one
of us (Sema, J.) is a party, after considering the
aforesaid judgment has distinguished the ratio
by holding that the writ under Article 226 of the
Constitution against a private educational
institute would be justified only if a public law
element is involved and if it is only a private law
remedy no writ petition would lie. In the present
cases, there is no question of public law
element involved inasmuch as the grievances of
the appellants are of personal nature.
8. We, accordingly, hold that writ petitions
are not maintainable against the private
institute. There is no infirmity in the order
passed by the learned Single Judge and
affirmed by the Division Bench. These appeals
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are devoid of merit and are, accordingly,
dismissed. No costs.”
(emphasis supplied)
50. We may also refer to and rely upon the decision
of this Court in Vidya Ram Misra v. Shri Jai Narain
College [Vidya Ram Misra v. Shri Jai Narain College,
(1972) 1 SCC 623 : AIR 1972 SC 1450] . The appellant
therein filed a writ petition before the Lucknow Bench of
the High Court of Allahabad challenging the validity of a
resolution passed by the Managing Committee of Shri
Jai Narain College, Lucknow, an associated college of
Lucknow University, terminating his services and
praying for issue of an appropriate writ or order
quashing the resolution. A learned Single Judge of the
High Court finding that in terminating the services, the
Managing Committee acted in violation of the principles
of natural justice, quashed the resolution and allowed
the writ petition. The Managing Committee appealed
against the order. A Division Bench of the High Court
found that the relationship between the college and the
appellant therein was that of master and servant and
that even if the service of the appellant had been
terminated in breach of the audi alteram partem rule of
natural justice, the remedy of the appellant was to file a
suit for damages and not to apply under Article 226 of
the Constitution for a writ or order in the nature of
certiorari and that, in fact, no principle of natural justice
was violated by terminating the services of the
appellant. The writ petition was dismissed. In appeal,
this Court upheld the decision of the High Court holding
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that the lecturer cannot have any cause of action on
breach of the law but only on breach of the contract,
hence he has a remedy only by way of suit for damages
and not by way of writ under Article 226 of the
Constitution.
51. In Vidya Ram Misra [Vidya Ram Misra v. Shri Jai
Narain College, (1972) 1 SCC 623 : AIR 1972 SC 1450]
, this Court observed thus : (SCC p. 629, paras 12-13)
“12. Whereas in P.R.K. Jodh v. A.L.
Pande [P.R.K. Jodh v. A.L. Pande, (1965) 2
SCR 713] , the terms and conditions of service
embodies in Clause 8(vi)(a) of the “College
Code” had the force of law apart from the
contract and conferred rights on the appellant
there, here the terms and conditions mentioned
in Statute 151 have no efficacy, unless they are
incorporated in a contract. Therefore, appellant
cannot found a cause of action on any breach of
the law but only on the breach of the contract.
As already indicated, Statute 151 does not lay
down any procedure for removal of a teacher to
be incorporated in the contract. So, Clause 5 of
the contract can, in no event, have even a
statutory flavour and for its breach, the
appellant’s remedy lay elsewhere.
13. Besides, in order that the third exception
to the general rule that no writ will lie to quash
an order terminating a contract of service, albeit
illegally, as stated in S.R. Tewari v. District
Board, Agra [S.R. Tewari v. District Board,
Agra, (1964) 3 SCR 55 : AIR 1964 SC 1680] ,
might apply, it is necessary that the order must
be the order of a statutory body acting in breach
of a mandatory obligation imposed by a statute.
The college, or the Managing Committee in
question, is not a statutory body and so the
argument of Mr Setalvad that the case in hand
will fall under the third exception cannot be
accepted. The contention of counsel that this
Court has sub silentio sanctioned the issue of a
writ under Article 226 to quash an order
terminating services of a teacher passed by a
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college similarly situate in P.R.K. Jodh [P.R.K.
Jodh v. A.L. Pande, (1965) 2 SCR 713] , and,
therefore, the fact that the college or the
Managing Committee was not a statutory body
was no hindrance to the High Court issuing the
writ prayed for by the appellant has no merit as
this Court expressly stated in the judgment that
no such contention was raised in the High Court
and so it cannot be allowed to be raised in this
Court.”
52. In the case on hand, the facts are similar. Rule
26(1) of the Affiliation Bye-laws, framed by CBSE,
provides that each school affiliated with the Board shall
frame Service Rules. Sub-rule (2) of it provides that a
service contract will be entered with each employee as
per the provision in the Education Act of the State/Union
Territory, or as given in Appendix III, if not obligatory as
per the State Education Act. These rules also provide
procedures for appointments, probation, confirmation,
recruitment, attendance representations, grant of leave,
code of conduct, disciplinary procedure, penalties, etc.
The model form of contract of service, to be executed
by an employee, given in Appendix III, lays down that
the service, under this agreement, will be liable to
disciplinary action in accordance with the Rules and
Regulations framed by the school from time to time.
Only in case where the post is abolished or an
employee intends to resign, Rule 31 of the Affiliation
Bye-laws of the Board will apply. It may be noted that
the above Bye-laws do not provide for any particular
procedure for dismissal or removal of a teacher for
being incorporated in the contract. Nor does the model
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form of contract given in Appendix III lay down any
particular procedure for that purpose. On the contrary,
the disciplinary action is to be taken in accordance with
the Rules and Regulations framed by the school from
time to time.
53. On a plain reading of these provisions, it
becomes clear that the terms and conditions mentioned
in the Affiliation Bye-laws may be incorporated in the
contract to be entered into between the school and the
employee concerned. It does not say that the terms and
conditions have any legal force, until and unless they
are embodied in an agreement. To put it in other words,
the terms and conditions of service mentioned in
Chapter VII of the Affiliation Bye-laws have no force of
law. They become terms and conditions of service only
by virtue of their being incorporated in the contract.
Without the contract they have no vitality and can confer
no legal rights. The terms and conditions mentioned in
the Affiliation Bye-laws have no efficacy, unless they
are incorporated in a contract. In the absence of any
statutory provisions governing the services of the
employees of the school, the service of Respondent 1
was purely contractual. A contract of personal service
cannot be enforced specifically. Therefore, Respondent
1 cannot find a cause of action on any breach of the
law, but only on the breach of the contract. That being
so, the appellant’s remedy lies elsewhere and in no
case the writ is maintainable.
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54. Thus, the aforesaid order passed by this Court
makes it very clear that in a case of retirement and in
case of termination, no public law element is involved.
This Court has held that a writ under Article 226 of the
Constitution against a private educational institution
shall be maintainable only if a public law element is
involved and if there is no public law element is
involved, no writ lies.
55. In T.M.A. Pai Foundation v. State of
Karnataka [T.M.A. Pai Foundation v. State of
Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] , an eleven-
Judge Bench of this Court formulated certain points in
fact to reconsider its earlier decision in Ahmedabad St.
Xavier’s College Society v. State of
Gujarat [Ahmedabad St. Xavier’s College
Society v. State of Gujarat, (1974) 1 SCC 717 : 1 SCEC
125] , and also Unni Krishnan, J.P. v. State of
A.P. [Unni Krishnan, J.P. v. State of A.P., (1993) 4 SCC
111 : 1 SCEC 645] , regarding the “right of the minority
institution including administration of the student and
imparting education vis-à-vis the right of administration
of the non-minority student”.
56. In the said case, very important points arose as
follows : (T.M.A. Pai Foundation case [T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2
SCEC 1] , SCC pp. 709-10, para 450)
“450. … Q. 5. (c) Whether the statutory
provisions which regulate the facets of
administration like control over educational
agencies, control over governing bodies,
conditions of affiliation including
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recognition/withdrawal thereof, and appointment
of staff, employees, teachers and principals
including their service conditions and regulation
of fees, etc. would interfere with the right of
administration of minorities?
A. So far as the statutory provisions
regulating the facets of administration are
concerned, in case of an unaided minority
educational institution, the regulatory measure
of control should be minimal and the conditions
of recognition as well as conditions of affiliation
to a university or board have to be complied
with, but in the matter of day-to-day
management, like appointment of staff, teaching
and non-teaching and administrative control
over them, the management should have the
freedom and there should not be any external
controlling agency. However, a rational
procedure for selection of teaching staff and for
taking disciplinary action has to be evolved by
the management itself. For redressing the
grievances of such employees who are
subjected to punishment or termination from
service, a mechanism will have to be evolved
and in our opinion, appropriate tribunals could
be constituted, and till then, such tribunal could
be presided over by a judicial officer of the rank
of District Judge. The State or other controlling
authorities, however, can always prescribe the
minimum qualifications, salaries, experience
and other conditions bearing on the merit of an
individual for being appointed as a teacher of an
educational institution.
Regulations can be framed governing
service conditions for teaching and other staff
for whom aid is provided by the State without
interfering with overall administrative control of
management over the staff,
government/university representative can be
associated with the Selection Committee and
the guidelines for selection can be laid down. In
regard to unaided minority educational
institutions such regulations, which will ensure a
check over unfair practices and general welfare
of teachers could be framed.”
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57. We now proceed to look into the two decisions of
this Court in Ramesh Ahluwalia [Ramesh
Ahluwalia v. State of Punjab, (2012) 12 SCC 331 :
(2013) 3 SCC (L&S) 456 : 4 SCEC 715] and Marwari
Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha
Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S)
854] respectively.
58. In Ramesh Ahluwalia [Ramesh
Ahluwalia v. State of Punjab, (2012) 12 SCC 331 :
(2013) 3 SCC (L&S) 456 : 4 SCEC 715] , the appellant
therein was working as an administrative officer in a
privately run educational institution and by way of
disciplinary proceedings, was removed from service by
the Managing Committee of the said educational
institution. A writ petition was filed before the learned
Single Judge of the High Court challenging the order of
the disciplinary authority wherein he was removed from
service. The writ petition was ordered [Ramesh
Ahluwalia v. State of Punjab, 2009 SCC OnLine P&H
11755] to be dismissed in limine holding that the said
educational institution being an unaided and a private
school managed by the society cannot be said to be an
instrument of the State. The appeal before the Division
Bench also came to be dismissed [Ramesh
Ahluwalia v. State of Punjab, 2010 SCC OnLine P&H
13111] . The matter travelled to this Court.
59. The principal argument before this Court
in Ramesh Ahluwalia case [Ramesh Ahluwalia v. State
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of Punjab, (2012) 12 SCC 331 : (2013) 3 SCC (L&S)
456 : 4 SCEC 715] was in regard to the maintainability
of the writ petition against a private educational
institution. It was argued on the behalf of the appellant
therein that although a private educational institution
may not fall within the definition of “State” or “other
authorities/instrumentalities” of the State under Article
12 of the Constitution, yet a writ petition would be
maintainable as the said educational institution could be
said to be discharging public functions by imparting
education. However, the learned counsel for the
educational institution therein took a plea before this
Court that while considering whether a body falling
within the definition of “State”, it is necessary to
consider whether such body is financially, functionally
and administratively dominated by or under the control
of the Government. It was further argued that if the
control is merely regulatory either under a statute or
otherwise, it would not ipso facto make the body “State”
within Article 12 of the Constitution. On the conspectus
of the peculiar facts of the case and the submissions
advanced, this Court held that a writ petition would be
maintainable if a private educational institution
discharges public functions, more particularly imparting
education. Even by holding so, this Court declined to
extend any benefits to the teacher as the case involved
disputed questions of fact.
60. We take notice of the fact that in Ramesh
Ahluwalia [Ramesh Ahluwalia v. State of Punjab, (2012)
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12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715]
the attention of the Hon’ble Judges was not drawn to
the earlier decisions of this Court in K.
Krishnamacharyulu [K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engg., (1997) 3 SCC
571 : 1997 SCC (L&S) 841] , Federal Bank [Federal
Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733]
, Sushmita Basu v. Ballygunge Siksha
Samity [Sushmita Basu v. Ballygunge Siksha Samity,
(2006) 7 SCC 680 : 2006 SCC (L&S) 1741] , and Delhi
Public School v. M.K. Gandhi [Delhi Public
School v. M.K. Gandhi, (2015) 17 SCC 353 : (2017) 5
SCC (Civ) 461 : (2015) 3 SCC (L&S) 745] .
61. In Marwari Balika Vidyalaya [Marwari Balika
Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 :
(2021) 1 SCC (L&S) 854] , this Court followed Ramesh
Ahluwalia [Ramesh Ahluwalia v. State of Punjab, (2012)
12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715]
referred to above.
62. We may say without any hesitation that
Respondent 1 herein cannot press into service the
dictum as laid down by this Court in Marwari Balika
Vidyalaya [Marwari Balika Vidyalaya v. Asha
Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S)
854] as the said case is distinguishable. The most
important distinguishing feature of Marwari Balika
Vidyalaya [Marwari Balika Vidyalaya v. Asha
Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S)
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854] is that in the said case the removal of the teacher
from service was subject to the approval of the State
Government. The State Government took a specific
stance before this Court that its approval was required
both for the appointment as well as removal of the
teacher. In the case on hand, indisputably the
Government or any other agency of the Government
has no role to play in the termination of Respondent 1
herein.
63. In context with Marwari Balika
Vidyalaya [Marwari Balika Vidyalaya v. Asha
Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S)
854] , we remind ourselves of Bye-law 49(2) which
provides that no order with regard to the imposition of
major penalty shall be made by the disciplinary authority
except after the receipt of the approval of the
Disciplinary Committee. Thus unlike Marwari Balika
Vidyalaya [Marwari Balika Vidyalaya v. Asha
Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S)
854] where approval was required of the State
Government, in the case on hand the approval is to be
obtained from the Disciplinary Committee of the
institution. This distinguishing feature seems to have
been overlooked by the High Court while passing the
impugned order.
64. In Marwari Balika Vidyalaya [Marwari Balika
Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 :
(2021) 1 SCC (L&S) 854] , the school was receiving
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grant-in-aid to the extent of dearness allowance. The
appointment and the removal, as noted above, is
required to be approved by the District Inspector of
School (Primary Education) and, if any action is taken
dehors such mandatory provisions, the same would not
come within the realm of private element.
65. In Trigun Chand Thakur [Trigun Chand
Thakur v. State of Bihar, (2019) 7 SCC 513 : (2019) 2
SCC (L&S) 378] , the appellant therein was appointed
as a Sanskrit teacher and a show-cause notice was
issued upon him on the ground that he was absent on
the eve of Independence day and Teachers Day which
resulted into a dismissal order passed by the Managing
Committee of the private school. The challenge was
made by filing a writ petition before the High Court
which was dismissed on the ground that the writ petition
is not maintainable against an order terminating the
service by the Managing Committee of the private
school. This Court held that even if the private school
was receiving a financial aid from the Government, it
does not make the said Managing Committee of the
school a “State” within the meaning of Article 12 of the
Constitution of India.
66. Merely because a writ petition can be maintained
against the private individuals discharging the public
duties and/or public functions, the same should not be
entertained if the enforcement is sought to be secured
under the realm of a private law. It would not be safe to
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say that the moment the private institution is amenable
to writ jurisdiction then every dispute concerning the
said private institution is amenable to writ jurisdiction. It
largely depends upon the nature of the dispute and the
enforcement of the right by an individual against such
institution. The right which purely originates from a
private law cannot be enforced taking aid of the writ
jurisdiction irrespective of the fact that such institution is
discharging the public duties and/or public functions.
The scope of the mandamus is basically limited to an
enforcement of the public duty and, therefore, it is an
ardent duty of the court to find out whether the nature of
the duty comes within the peripheral of the public duty.
There must be a public law element in any action.
67. Our present judgment would remain incomplete
if we fail to refer to the decision of this Court
in Ramakrishna Mission v. Kago Kunya [Ramakrishna
Mission v. Kago Kunya, (2019) 16 SCC 303] . In the
said case this Court considered all its earlier judgments
on the issue. The writ petition was not found
maintainable against the Mission merely for the reason
that it was found running a hospital, thus discharging
public functions/public duty. This Court considered the
issue in reference to the element of public function
which should be akin to the work performed by the
State in its sovereign capacity. This Court took the view
that every public function/public duty would not make a
writ petition to be maintainable against an “authority” or
a “person” referred under Article 226 of the Constitution
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of India unless the functions are such which are akin to
the functions of the State or are sovereign in nature.
68. Few relevant paragraphs of the said judgment
are quoted as under for ready reference : (Ramakrishna
Mission case [Ramakrishna Mission v. Kago Kunya,
(2019) 16 SCC 303] , SCC pp. 309-11 & 313, paras 17-
22 & 25-26)
“17. The basic issue before this Court is
whether the functions performed by the hospital
are public functions, on the basis of which a writ
of mandamus can lie under Article 226 of the
Constitution.
18. The hospital is a branch of the
Ramakrishna Mission and is subject to its control.
The Mission was established by Swami
Vivekanand, the foremost disciple of Shri
Ramakrishna Paramhansa. Service to humanity is
for the organisation co-equal with service to God
as is reflected in the motto “Atmano Mokshartham
Jagad Hitaya Cha”. The main object of the
Ramakrishna Mission is to impart knowledge in
and promote the study of Vedanta and its
principles propounded by Shri Ramakrishna
Paramahansa and practically illustrated by his
own life and of comparative theology in its widest
form. Its objects include, inter alia to establish,
maintain, carry on and assist schools, colleges,
universities, research institutions, libraries,
hospitals and take up development and general
welfare activities for the benefit of the
underprivileged/backward/tribal people of society
without any discrimination. These activities are
voluntary, charitable and non-profit making in
nature. The activities undertaken by the Mission,
a non-profit entity are not closely related to those
performed by the State in its sovereign capacity
nor do they partake of the nature of a public duty.
19. The Governing Body of the Mission is
constituted by members of the Board of Trustees
of Ramakrishna Math and is vested with the
power and authority to manage the organisation.
The properties and funds of the Mission and its
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management vest in the Governing Body. Any
person can become a member of the Mission if
elected by the Governing Body. Members on roll
form the quorum of the annual general meetings.
The Managing Committee comprises of members
appointed by the Governing Body for managing
the affairs of the Mission. Under the
Memorandum of Association and Rules and
Regulations of the Mission, there is no
governmental control in the functioning,
administration and day-to-day management of the
Mission. The conditions of service of the
employees of the hospital are governed by
service rules which are framed by the Mission
without the intervention of any governmental
body.
20. In coming to the conclusion that the
appellants fell within the description of an
authority under Article 226, the High Court placed
a considerable degree of reliance on the
judgment of a two-Judge Bench of this Court
in Andi Mukta [Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2
SCC 691 : AIR 1989 SC 1607] . Andi Mukta [Andi
Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust v. V.R.
Rudani, (1989) 2 SCC 691 : AIR 1989 SC 1607]
was a case where a public trust was running a
college which was affiliated to Gujarat University,
a body governed by the State legislation. The
teachers of the University and all its affiliated
colleges were governed, insofar as their pay
scales were concerned, by the recommendations
of the University Grants Commission. A dispute
over pay scales raised by the association
representing the teachers of the University had
been the subject-matter of an award of the
Chancellor, which was accepted by the
Government as well as by the University. The
management of the college, in question, decided
to close it down without prior approval. A writ
petition was instituted before the High Court for
the enforcement of the right of the teachers to
receive their salaries and terminal benefits in
accordance with the governing provisions. In that
context, this Court dealt with the issue as to
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whether the management of the college was
amenable to the writ jurisdiction. A number of
circumstances weighed in the ultimate decision of
this Court, including the following:
20.1. The trust was managing an affiliated
college.
20.2. The college was in receipt of
government aid.
20.3. The aid of the Government played a
major role in the control, management and work
of the educational institution.
20.4. Aided institutions, in a similar manner as
government institutions, discharge a public
function of imparting education to students.
20.5. All aided institutions are governed by the
rules and regulations of the affiliating University.
20.6. Their activities are closely supervised by
the University.
20.7. Employment in such institutions is
hence, not devoid of a public character and is
governed by the decisions taken by the University
which are binding on the management.
21. It was in the above circumstances that this
Court came to the conclusion that the service
conditions of the academic staff do not partake of
a private character, but are governed by a right-
duty relationship between the staff and the
management. A breach of the duty, it was held,
would be amenable to the remedy of a writ of
mandamus. While the Court recognised that “the
fast expanding maze of bodies affecting rights of
people cannot be put into watertight
compartments”, it laid down two exceptions where
the remedy of mandamus would not be available :
(SCC p. 698, para 15)
’15. If the rights are purely of a private
character no mandamus can issue. If the
management of the college is purely a private
body with no public duty mandamus will not lie.
These are two exceptions to mandamus.’
22. Following the decision in Andi Mukta [Andi
Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust v. V.R.
Rudani, (1989) 2 SCC 691 : AIR 1989 SC 1607] ,
this Court has had the occasion to re-visit the
underlying principles in successive decisions.
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This has led to the evolution of principles to
determine what constitutes a “public duty” and
“public function” and whether the writ of
mandamus would be available to an individual
who seeks to enforce her right.
***
25. A similar view was taken in Ramesh
Ahluwalia v. State of Punjab [Ramesh
Ahluwalia v. State of Punjab, (2012) 12 SCC 331 :
(2013) 3 SCC (L&S) 456 : 4 SCEC 715] , where a
two-Judge Bench of this Court held that a private
body can be held to be amenable to the
jurisdiction of the High Court under Article 226
when it performs public functions which are
normally expected to be performed by the State
or its authorities.
26. In Federal Bank Ltd. v. Sagar
Thomas [Federal Bank Ltd. v. Sagar Thomas,
(2003) 10 SCC 733] , this Court analysed the
earlier judgments of this Court and provided a
classification of entities against whom a writ
petition may be maintainable : (SCC p. 748, para
18)
’18. From the decisions referred to above,
the position that emerges is that a writ petition
under Article 226 of the Constitution of India
may be maintainable against (i) the State
(Government); (ii) an authority; (iii) a statutory
body; (iv) an instrumentality or agency of the
State; (v) a company which is financed and
owned by the State; (vi) a private body run
substantially on State funding; (vii) a private
body discharging public duty or positive
obligation of public nature; and (viii) a person
or a body under liability to discharge any
function under any statute, to compel it to
perform such a statutory function.’ “
(emphasis in original)
69. The aforesaid decision of this Court
in Ramakrishna Mission [Ramakrishna Mission v. Kago
Kunya, (2019) 16 SCC 303] came to be considered
exhaustively by a Full Bench of the High Court of
Allahabad in Uttam Chand Rawat v. State of
U.P. [Uttam Chand Rawat v. State of U.P., 2021 SCC
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OnLine All 724 : (2021) 6 All LJ 393] , wherein the Full
Bench was called upon to answer the following question
: (Uttam Chand Rawat case [Uttam Chand
Rawat v. State of U.P., 2021 SCC OnLine All 724 :
(2021) 6 All LJ 393] , SCC OnLine All para 1)
“1. …'(i) Whether the element of public
function and public duty inherent in the enterprise
that an educational institution undertakes,
conditions of service of teachers, whose functions
are a sine qua non to the discharge of that public
function or duty, can be regarded as governed by
the private law of contract and with no remedy
available under Article 226 of the Constitution?”
70. The Full Bench proceeded to answer the
aforesaid question as under : (Uttam Chand Rawat
case [Uttam Chand Rawat v. State of U.P., 2021 SCC
OnLine All 724 : (2021) 6 All LJ 393] , SCC OnLine All
paras 16-20)
“16. The substance of the discussion made
above is that a writ petition would be maintainable
against the authority or the person which may be
a private body, if it discharges public
function/public duty, which is otherwise primary
function of the State referred in the judgment of
the Supreme Court in Ramakrishna
Mission [Ramakrishna Mission v. Kago Kunya,
(2019) 16 SCC 303] and the issue under public
law is involved. The aforesaid twin test has to be
satisfied for entertaining writ petition under Article
226 of the Constitution of India.
17. From the discussion aforesaid and in the
light of the judgments referred above, a writ
petition under Article 226 of the Constitution
would be maintainable against (i) the
Government; (ii) an authority; (iii) a statutory
body; (iv) an instrumentality or agency of the
State; (v) a company which is financed and
owned by the State; (vi) a private body run
substantially on State funding; (vii) a private body
discharging public duty or positive obligation of
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public nature; and (viii) a person or a body under
liability to discharge any function under any
statute, to compel it to perform such a statutory
function.
18. There is thin line between “public
functions” and “private functions” discharged by a
person or a private body/authority. The writ
petition would be maintainable only after
determining the nature of the duty to be enforced
by the body or authority rather than identifying the
authority against whom it is sought.
19. It is also that even if a person or authority
is discharging public function or public duty, the
writ petition would be maintainable under Article
226 of the Constitution, if Court is satisfied that
action under challenge falls in the domain of
public law, as distinguished from private law. The
twin tests for maintainability of writ are as follows:
1. The person or authority is discharging
public duty/public functions.
2. Their action under challenge falls in
domain of public law and not under common
law.
20. The writ petition would not be
maintainable against an authority or a person
merely for the reason that it has been created
under the statute or is to be governed by
regulatory provisions. It would not even in a case
where aid is received unless it is substantial in
nature. The control of the State is another issue to
hold a writ petition to be maintainable against an
authority or a person.”
(emphasis supplied)
71. We owe a duty to consider one relevant aspect
of the matter. Although this aspect which we want to
take notice of has not been highlighted by Respondent
1, yet we must look into the same. We have referred to
the CBSE Affiliation Bye-laws in the earlier part of our
judgment. Appendix IV of the Affiliation Bye-laws is with
respect to the minority institutions. Clause 6 of
Appendix IV is with respect to the disciplinary control
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over the staff in a minority educational institution. We
take notice of the fact that in Clause 6, the State has the
regulatory power to safeguard the interests of their
employees and their service conditions including the
procedure for punishment to be imposed.
72. For the sake of convenience and at the cost of
repetition, we quote Clause 6 once again as under:
“6. Disciplinary control over staff in
Minority EducationalInstitutions.–While
the managements should exercise the disciplinary
control over staff, it must be ensured that they
hold an inquiry and follow a fair procedure before
punishment is given. With a view to preventing
the possible misuse of power by the management
of the Minority Educational Institutions, the State
has the regulatory power to safeguard the
interests of their employees and their service
conditions including procedure for punishment to
be imposed.”
(emphasis supplied)
73. It could be argued that as the State has
regulatory power to safeguard the interests of the
employees serving with the minority institutions, any
action or decision taken by such institution is amenable
to writ jurisdiction under Article 226 of the Constitution.
74. In the aforesaid context, we may only say that
merely because the State Government has the
regulatory power, the same, by itself, would not confer
any such status upon the institution (school) nor put any
such obligations upon it which may be enforced through
issue of a writ under Article 226 of the Constitution. In
this regard, we may refer to and rely upon the decision
of this Court in Federal Bank [Federal Bank
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Ltd. v. Sagar Thomas, (2003) 10 SCC 733] . While
deciding whether a private bank that is regulated by the
Banking Regulation Act, 1949 discharges any public
function, this Court held thus : (Ramakrishna Mission
case [Ramakrishna Mission v. Kago Kunya, (2019) 16
SCC 303] , SCC pp. 315-16, paras 33-35)
“33. …’33. …’in our view, a private company
carrying on banking business as a scheduled
bank, cannot be termed as an institution or a
company carrying on any statutory or public duty.
A private body or a person may be amenable to
writ jurisdiction only where it may become
necessary to compel such body or association to
enforce any statutory obligations or such
obligations of public nature casting positive
obligation upon it. We do not find such conditions
are fulfilled in respect of a private company
carrying on a commercial activity of
banking. Merely regulatory provisions to ensure
such activity carried on by private bodies work
within a discipline, do not confer any such status
upon the company nor put any such obligation
upon it which may be enforced through issue of a
writ under Article 226 of the Constitution. Present
is a case of disciplinary action being taken against
its employee by the appellant Bank. The
respondent’s service with the Bank stands
terminated. The action of the Bank was
challenged by the respondent by filing a writ
petition under Article 226 of the Constitution of
India. The respondent is not trying to enforce any
statutory duty on the part of the Bank.’ (Federal
Bank case [Federal Bank Ltd. v. Sagar Thomas,
(2003) 10 SCC 733] , SCC pp. 758-59, para 33)
34. Thus, contracts of a purely private nature
would not be subject to writ jurisdiction merely by
reason of the fact that they are structured by
statutory provisions. The only exception to this
principle arises in a situation where the contract of
service is governed or regulated by a statutory
provision. Hence, for instance, in K.K.
Saksena [K.K. Saksena v. International
Commission on Irrigation & Drainage, (2015) 4
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SCC 670 : (2015) 2 SCC (Civ) 654 : (2015) 2
SCC (L&S) 119] this Court held that when an
employee is a workman governed by the
Industrial Disputes Act, 1947, it constitutes an
exception to the general principle that a contract
of personal service is not capable of being
specifically enforced or performed.
35. It is of relevance to note that the Act was
enacted to provide for the regulation and
registration of clinical establishments with a view
to prescribe minimum standards of facilities and
services. The Act, inter alia, stipulates conditions
to be satisfied by clinical establishments for
registration. However, the Act does not govern
contracts of service entered into by the hospital
with respect to its employees. These fall within
the ambit of purely private contracts, against
which writ jurisdiction cannot lie. The sanctity of
this distinction must be preserved.”
(emphasis in original and supplied)
75. We may sum up our final conclusions as under:
75.1. An application under Article 226 of the
Constitution is maintainable against a person or a body
discharging public duties or public functions. The public
duty cast may be either statutory or otherwise and
where it is otherwise, the body or the person must be
shown to owe that duty or obligation to the public
involving the public law element. Similarly, for
ascertaining the discharge of public function, it must be
established that the body or the person was seeking to
achieve the same for the collective benefit of the public
or a section of it and the authority to do so must be
accepted by the public.
75.2. Even if it be assumed that an educational
institution is imparting public duty, the act complained of
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must have a direct nexus with the discharge of public
duty. It is indisputably a public law action which confers
a right upon the aggrieved to invoke the extraordinary
writ jurisdiction under Article 226 for a prerogative writ.
Individual wrongs or breach of mutual contracts without
having any public element as its integral part cannot be
rectified through a writ petition under Article 226.
Wherever Courts have intervened in their exercise of
jurisdiction under Article 226, either the service
conditions were regulated by the statutory provisions or
the employer had the status of “State” within the
expansive definition under Article 12 or it was found that
the action complained of has public law element.
75.3. It must be consequently held that while a body
may be discharging a public function or performing a
public duty and thus its actions becoming amenable to
judicial review by a constitutional court, its employees
would not have the right to invoke the powers of the
High Court conferred by Article 226 in respect of matter
relating to service where they are not governed or
controlled by the statutory provisions. An educational
institution may perform myriad functions touching
various facets of public life and in the societal sphere.
While such of those functions as would fall within the
domain of a “public function” or “public duty” be
undisputedly open to challenge and scrutiny under
Article 226 of the Constitution, the actions or decisions
taken solely within the confines of an ordinary contract
of service, having no statutory force or backing, cannot
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be recognised as being amenable to challenge under
Article 226 of the Constitution. In the absence of the
service conditions being controlled or governed by
statutory provisions, the matter would remain in the
realm of an ordinary contract of service.
75.4. Even if it be perceived that imparting education
by private unaided school is a public duty within the
expanded expression of the term, an employee of a
non-teaching staff engaged by the school for the
purpose of its administration or internal management is
only an agency created by it. It is immaterial whether
“A” or “B” is employed by school to discharge that duty.
In any case, the terms of employment of contract
between a school and non-teaching staff cannot and
should not be construed to be an inseparable part of the
obligation to impart education. This is particularly in
respect to the disciplinary proceedings that may be
initiated against a particular employee. It is only where
the removal of an employee of non-teaching staff is
regulated by some statutory provisions, its violation by
the employer in contravention of law may be interfered
with by the Court. But such interference will be on the
ground of breach of law and not on the basis of
interference in discharge of public duty.
75.5. From the pleadings in the original writ petition,
it is apparent that no element of any public law is
agitated or otherwise made out. In other words, the
action challenged has no public element and writ of
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mandamus cannot be issued as the action was
essentially of a private character.
(Emphasis Supplied)
76. In view of the aforesaid discussion, we hold that
the learned Single Judge [Rajendra Prasad
Bhargava v. Union of India, 2017 SCC OnLine MP
2337] of the High Court was justified in taking the view
that the original writ application filed by Respondent 1
herein under Article 226 of the Constitution is not
maintainable. The appeal court could be said to have
committed an error in taking a contrary view.”
23. If the facts of the case on hand are examined, bearing in
mind the aforesaid principles, it is clear that the claim of the
petitioners as regards their alleged rights over land bearing
Sy.No.193/4 and alleged forgery of lease agreement dated
21.11.2011 by respondents 3 to 5 cannot be said to contain any
element of any public law, which is neither agitated or otherwise
made out especially when the said allegation of forgery, fraud,
collusion etc., cannot be used to invoking the jurisdiction of this
Court against a private unaided educational institutions and on this
ground also, the present petition is liable to be dismissed.
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24. As rightly contended by the learned Senior counsel for
respondents 3 to 5, even according to the petitioners themselves,
the lease agreement dated 21.11.2011 was produced for the
purpose of obtaining affiliation in the year 2016 which has
continued from that time onwards and renewed continuously from
year to year; no explanation whatsoever is offered by the
petitioners as regards belated filing of complaint dated 09.01.2024
in relation to an alleged forged lease agreement dated 21.11.2011
and at any rate from 2016 onwards when affiliation was granted
and consequently, the unexplained delay and latches on the part of
the petitioners to put forth a claim against an alleged forged lease
agreement is yet another circumstance to decline to grant any
indulgence in favour of the petitioners in the present petition.
25. The undisputed material on record will clearly indicate
that the present petition is preceded by several civil and criminal
litigations, disputes, arbitration proceedings etc., between the
petitioners and the respondents; the present petition is clearly yet
another attempt by the petitioners to put forth a claim against the
respondents 3 to 5 in relation to Harsha Institute of Physiotherapy
over which, undisputedly the petitioners do not have any claim or
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right whatsoever and the same is being run by 3rd respondent –
Trust. Under these circumstances also, there is no merit in the
various allegations put forth by the petitioners in the present
petition which is liable to be dismissed.
26. Insofar as the various judgments relied upon by the
petitioners are concerned, in view of the findings recorded by me
hereinbefore, the said judgments rendered in the facts and
circumstances of the said cases would not be applicable to the
case on hand and as such, the same are not elaborately dealt with
for the purpose of the present order.
27. In view of the foregoing discussion, I do not find any
merit in the petition and the same is hereby dismissed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
Srl.